“We’re a court. We really don’t know about these things. You know, these are not like the nine greatest experts on the internet,” quipped Justice Elena Kagan in February 2023 during arguments in Gonzalez v. Google. Her crack elicited “laughter” from the audience as the attorneys argued about whether a federal statute barred an effort to hold Google liable for aiding and abetting a death during a terrorist attack via recommendations on its YouTube platform.
Fast forward to 2024: The Court ruled in three cases involving social media platforms—Lindke v. Freed, Murthy v. Missouri, and Moody v. NetChoice. Are the justices now, if not the “greatest experts on the internet,” more knowledgeable about platforms’ workings? Did a year of scrutinizing briefs boost understanding?
Justice Amy Coney Barrett’s comprehension seems impressively nuanced. She not only penned the Court’s unanimous Lindke opinion (regarding whether state action arises when public officials block people or delete their comments on social media accounts), but also wrote the six-justice majority opinion in Murthy (involving jawboning by government officials to get platforms to remove or deprioritize conservative-leaning content about COVID-19 pandemic policies and the 2020 presidential election). Furthermore, Barrett authored a concurrence in Moody, where the justices told lower federal courts to explain the scope and application of Florida and Texas statutes that impinge on the First Amendment rights of platforms to independently moderate content. Although Barrett is the Court’s second newest member, she’s clearly prominent in its social media jurisprudence. Barrett’s Lindke and Murthy opinions are infused, of course, with knowledge of the justices who joined them.
Lindke: Cognizant that all social media platforms aren’t alike and that their nature isn’t stagnant, Barrett explained that “social media involves a variety of different and rapidly changing platforms, each with distinct features for speaking, viewing, and removing speech.” Her reference to “distinct features” is important for lawmakers to heed: It suggests that to pass constitutional muster for being narrowly tailored, a statute must carefully define the “platforms” it applies to by referencing their specific functionalities and applications. Deploying an overly broad definition of a social media platform—say, as an interactive space that allows posting messages and communicating with others—problematically ensnares platforms that likely aren’t the targets of lawmakers’ ire.
Additionally, Barrett appreciated that “the nature of the technology matters to the state-action analysis.” Here, she emphasized the difference between a platform that permits pinpointed, selective deleting of a user’s comments and the “bluntness” of a “page-wide blocking” function that not only bars citizens from commenting on any posts by public officials but may even—depending on the platform—stop citizens from seeing them.
Murthy: Barrett crucially observed that platforms’ content-moderation practices are “longstanding” and that “not everything goes” on platforms. This recognition pushes back against treating platforms as non-discriminatory common carriers, while telegraphing (common-carrier pun intended) the Court’s acknowledgment days later in Moody that Facebook’s “content-moderation standards” involve “the kind of editorial judgments this Court has previously held to receive First Amendment protection.” Barrett’s understanding in Murthy of platforms’ traditional content-moderation practices thereby paved the path for Justice Kagan’s (joined by five others, including Barrett) pro-First Amendment proclamations in Moody.
Barrett’s recognition that platforms’ content-moderation decisions aren’t novel also affected the majority’s decision that the Murthy plaintiffs lacked standing to challenge the government’s alleged coercion of platforms’ content-removal decisions. That’s because, as Barrett wrote, the platforms “had independent incentives to moderate content” and, “acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved.” (emphasis added). That understanding made it difficult for the plaintiffs to prove that a content-removal decision was caused by the government (a key ingredient of standing), not the platforms’ moderation policies.
Moody: Echoing her awareness in Lindke of a “variety of different” platforms replete with “distinct features,” Barrett in Moody detailed problems with using facial challenges to attack statutes that affect platforms’ content-moderation processes on First Amendment grounds. She asserted that “dealing with a broad swath of varied platforms and functions in a facial challenge strikes me as a daunting, if not impossible, task.” Barrett drilled into differences between using algorithms that implement human judgments when deleting content and deploying artificial intelligence programs that rely “on large language models to determine what is ‘hateful’ and should be removed.” The latter might be too distant from human decisions to merit First Amendment protection, she intimated. Barrett contended that any First Amendment analysis involving claims of content-moderation editorial rights “is bound to be fact intensive, and it will surely vary from function to function and platform to platform.”
Barrett’s desire for granular, as-applied analyses examining platforms’ “specific functions” should influence not only how plaintiffs challenge laws like those in Moody, but also how lawmakers craft them. Sprawling approaches to both statutory attacks and legislative drafting won’t suffice.
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